Delhi District Court
Sh. Ravinder Nath Sharma vs Sh. Hari Chand on 11 January, 2021
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER-02 (CENTRAL), TIS HAZARI
COURTS, DELHI.
E-1076/14
New No: 78184/16
Sh. Jitender Nath Sharma
S/o Late sh. Nand Lal
(Since deceased through LRs)
(i) Smt. Vijay Sharma
W/o Late Sh. Jitender Nath Sharma
R/o 38/5, East Patel Nagar,
New Delhi-11008.
(ii) Ms. Pooja Kalra,
D/o Late Sh. Jitender Nath Sharma
R/o 35/3, East Patel Nagar,
New Delhi-110008.
(iii) Sh. Pushkar Sharma,
S/o Late Sh. Jitender Nath Sharma
R/o 38/5, East Patel Nagar,
New Delhi-110008.
(iv) Sh. Prashant Sharma,
S/o Late Sh. Jitender Nath Sharma
R/o 38/5, East Patel Nagar,
New Delhi-110008.
Sh. Ravinder Nath Sharma
S/o Late Sh. Nand Lal
R/o 1634, main Bazar Pahar Ganj
Delhi .... Petitioners
VERSUS
Sh. Hari Chand
S/o Sh. Ramji Lal AJAY
Digitally
signed by
AJAY
Shop no. 1630 to 1632, NAGA
NAGAR
Date:
Chuna Mandi, Pahar Ganj, R 2021.01.12
14:27:37
+0530
New Delhi. .... Respondent
New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 1 / 32
Date of Filing : 02.02.1978
Date of Judgment : 11.01.2021
JUDGMENT
1. Brief facts of the present case are that on 02.02.1978, the petitioners filed the present petition Under Section 14 (1) (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act"
praying to this court to pass an order for eviction in favour of the petitioners and against the respondent in respect of the premises i.e. Shop no. 1630 to 1632, Chuna Mandi, Pahar Ganj, New Delhi as shown red in the site plan (hereinafter referred to as "Tenanted premises").
2. It is inter alia averred by the petitioners in the amended petition that petitioners are the absolute owners of the tenanted premises bearing Shop no. 1630 to 1632, Chuna Mandi, Pahar Ganj, New Delhi. That respondent became the tenant under the petitioners by operation of law when the petitioners purchased the tenanted premises from its previous owner through a registered sale deed. The tenancy of the respondent was an oral one which was duly terminated by the petitioners through a registered Notice dated 08.12.77 and now the respondent is a statutory tenant in the tenanted premises. That the respondent has sub let, assigned or otherwise parted with the possession of the tenancy premises to Sh. Pyare Lal S/o Sh. Laxmi Chand, Sh. Narsingh Dass S/o Sh. Bichha Ram and Sh. Naresh Kumar after 9th day of June, 1952 without the written consent of the petitioners and their predecessors in interest and the said illegal persons are in occupation and possession of the Digitally tenanted premises. That during the pendency of present petition, signed by AJAY NAGAR AJAY NAGAR Date:
2021.01.12 14:27:47 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 2 / 32 one of the sub tenants namely Sh. Pyare Lal in connivance with and in collusion with the legal heir of the respondent herein has further sublet / parted with possession of shop no. 1630, Chuna Mandi, Pahar Ganj, New Delhi in favour of one Sh. Anoop Bhardwaj, who is running his business in the said shop in the name and style of Annu Tours and Travels. That petitioners have obtained the necessary permission u/s 19 of the Slum Area Act.
Lastly, it is prayed by the petitioners that an eviction order may be passed against the respondent.
3. Amended Written Statement was filed by the respondent in response to amended petition filed by the petitioner U/S 14 (1) (b) of D.R.C Act praying to the court to dismiss the present petition with costs.
It is contended by the respondent that the petitioners purchased the house in the year 1973. The respondent along with others has been a joint tenant since the year 1930. The other persons are Sh. Pyare Lal, Shri Narsingh Das and Late Sh. Kali Ram, brother of the respondent. The tenancy was taken under the name and style of M/s Hari Chand Kali Ram from the previous owner/ landlord. Sh. Kali Ram died on 17.6.1972. Sh. Kali Ram left his legal heirs i.e. his widow Smt. Kasturi Devi, his two sons Sh. Naresh Kumar and sh. Rakesh and his four daughters Smt. Bhagwati Devi, Smt. Santosh, Smt. Kanta and Miss. Sunita. Since the inception of the tenancy, the respondent, his brother Sh. Kali Ram (now his above mentioned heirs and legal representatives), Sh. Pyare Lal and Shri Narsingh Das are co-tenants in the tenanted premises. Legal heirs of Sh. Kali Ram mentioned in Para no.1 are necessary parties as co-tenants.
Digitally signedAJAY by AJAY NAGAR Date: NAGAR 2021.01.12 14:27:58 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 3 / 32
It is also contended by the respondent that the permission from Slum Authority has been obtained only against Sh. Hari Chand respondent. That assuming but not admitting that there was subletting or parting with possession to Sh. Pyare Lal and Shri Narsingh Das, it is submitted that they have been in the tenanted premises from the commencement of the tenancy and the previous owners/landlords were fully in the knowledge of Sh. Pyare Lal and sh. Narsingh Dass in the tenanted premises from the very commencement of the tenancy and knowing all, previous landlords and owners of the property went on increasing rent from Rs.10/- per month to Rs. 37.18p.
It is also contended by the respondent that the previous landlords / owners were legally not entitled to raise any objection to the alleged subletting to Sh. Pyare Lal and Narsingh Das by the principle of acquiescence, waiver, abandonment and estoppels.
It is also contended by the respondent that Sh. Pyare Lal and sh. Narsingh Das along with the respondent and his brother Sh. Kali Ram have been in the tenanted premises from the commencement of the tenancy. The previous owners and landlords consented to their being in the tenanted premises along with the respondent Sh. Hari Chand and his brother Sh. Kali Ram and there was complete acquiescence, waiver and estoppels from raising any objection in respect thereof.
It is also contended by the respondent that the petitioners themselves have been carrying on business in adjacent shop for the last more than 40 years and have been in the knowledge of the aforesaid Sh. Pyare Lal, Sh. Nar singh Das and Sh.Kali Ram in occupation of the tenanted premises along with the respondent from Digitally signed AJAY by AJAY NAGAR Date: NAGAR 2021.01.12 14:28:04 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 4 / 32 the commencement of the tenancy in about the year 1930 and they have purchased the property with full knowledge thereof.
It is further contended by the respondent that the petitioners gave rent receipts in the name of M/s Hari Chand Kali Ram and so also they admitted Sh.Hari Chand, heir of sh. Kali Ram and the other two persons Sh. Pyare Lal and Sh. Narsingh Das as tenants in the tenanted premises. The petitioners should have made the alleged sub-tenants as parties. The petitioners filed a previous eviction petition No. 293/75 against sh. Hari Chand, sh. Narsingh Das and Sh.Pyare Lal and the same eviction petition was dismissed as withdrawn by order dated 05.01.1976. That respondent sh. Hari Chand alone is not the tenant in the tenanted premises. Sh. Hari Chand, his younger brother sh. Kali Ram, Sh. Pyare Lal and Sh. Narsingh Das near relatives of sh. Hari Chand had always been joint tenants in the tenanted premises. The present monthly rent of the premises is Rs. 37.18p. Water and electricity charges are paid by the tenants. It is denied that during the pendency of above said petition, one of the sub tenants namely Sh. Pyare Lal in connivance with and in collusion with the legal heirs of the respondent herein has further sub-let/ parted with possession of shop no. 1630, Chuna Mandi, Pahar Ganj, New Delhi (part of the tenanted premises) in favour of one Sh. Anoop Bharadwaj who is running his business in the said shop in the name and style of Annu Tours and Travels and the same has been falsely alleged. That during the pendency of the petition, the petitioners intended to take the forcible possession of the tenanted premises and the deceased respondent along with other tenants namely Sh. Pyare Lal, Sh. Nar Singh Dass and LRs of deceased Sh. Kali Ram filed a suit for permanent injunction that the Digitally signed by AJAY intention of petitioners herein is to take forcible possession as they AJAY NAGAR NAGAR Date:
2021.01.12 14:28:16 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 5 / 32 earlier tried and a case was registered under Section 448 IPC. That petitioners herein with malafide intention got filed a suit for declaration and permanent injunction through their own front man Sh. Madan Lal against Sh. Nar Singh Dass and sh. Hari Chand alleging that he is tenant in possession of part of tenanted premises. That suit was registered as suit no. 470/83 titled as Sh. Madan Lal v. Nar Singh Dass and Anr. Shri Hari Chand alongwith Mr. Pyare Lal and sons of late Sh. Kali Ram filed a suit for permanent injunction, however, the other legal heirs of Sh. Kali Ram did not join as plaintiff and they were made defendants in the said suit. Ld. Court was pleased to passed restrain order dated 03.3.1986. That petitioners herein succeeded in taking the possession in respect of one shop no. 1630 and said shop is in power and possession of the petitioners and the same was taken illegally on 29.01.1994. A suit under Section 6 of Specific Relief Act was filed against the petitioners in January, 1994. That respondent is not in possession of the shop no. 1630 and the same is in power and possession of the petitioners and they have falsely alleged that the said shop is in possession of Annu Tours and Travels which is also party in the said suit. The previous landlord Sh. Anand Parkash, from whom the petitioners allegedly purchased the premises in question, issued rent receipts that proves on record that Sh. Hari Chand, sh. Kali Ram along with Sh. Pyare Lal and sh. Nar Singh Das were tenants running business in the tenanted premises. That Sh. Kali Ram who was running business and used to put wooden takhat in front of shop and paid charges for the same to the MCD who issued the receipt thereof. Sh. Hari Chand was running business and Sh. Pyare Lal was running his business even much prior to purchase of this property by the petitioners and AJAY NAGAR he was receiving the house tax notice from MCD in respect of his Digitally signed by AJAY NAGAR Date: 2021.01.12 14:28:28 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 6 / 32 house at the address of the tenanted premises. That petition of the petitioners is false to the knowledge of the petitioners as even inspection / survey was carried out by the MCD in 1953 and the names of all the above named tenants who are in occupation in the tenanted premises are shown in the municipal record.
Lastly, it is prayed by the respondent that the present eviction petition may be dismissed.
4. Thereafter, the petitioners examined themselves and relied upon several documents. Thereafter, petitioners closed their evidence.
5. On the other hand, respondent examined himself and several witnesses and relied upon large number of rent receipts and other documents to prove his case. Thereafter, respondent closed his evidence.
6. I have heard the arguments at length advanced by both the ld. counsels. I have also carefully gone through pleadings, testimonies of all the witnesses, documents filed, written submissions, voluminous case law relied upon and material on record.
Landlordship:-
7. Perusal of record shows that petitioners have claimed to be landlords of the tenanted premises on the basis of purchase from previous owner/landlord by virtue of registered sale deed. Digitally signed by AJAY AJAY NAGAR NAGAR Date:
2021.01.12 14:28:34 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 7 / 32 On the other hand, respondent has averred in paragraph no.
3. (a) of the written statement that " Para No. 3 (a) is not denied that the petitioners are landlords."
Moreover, in first paragraph of the written statement, the respondent has inter alia averred that" That the petitioners purchased the house in the year 1973."
8. Perusal of record shows that the petitioner has placed on record some documents to prove their ownership and landlordship. It is well settled that U/S 14(1)(b) of DRC Act, the petitioners are required to prove land lordship only and he need not to prove their ownership regarding tenanted premises. Moreover, even U/S 14(1)
(e) of DRC Act, the petitioner/landlord need not prove his ownership in absolute terms. It is sufficient for the petitioner to show that he/she is something more than the tenant.
9. I have perused all the documents filed by both the parties, testimony of all the witnesses and material on record.
10. Admissions made by the respondent made in written statement and documents manifestly show that there exist a relationship of landlord and tenant between the parties.
Section 14 (1) (b) sub-letting:-
11. It is expedient to reproduce the Section 14 (1) (b) of DRC Act which is as under: Digitally signed by "Section-14. Protection of tenant against AJAY AJAY NAGAR Date:
NAGAR 2021.01.12
eviction- (1) notwithstanding anything to the 14:28:42
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contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(b) That the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".
As per Delhi Rent Control Act, Section 14 (1)(b) D.R.C. Act is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. Section 14 (1) (b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. The sub tenant was in exclusive possession of Digitally property or part of the property. signed by AJAY AJAY NAGAR Date:
NAGAR 2021.01.12
14:28:59
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(ii). No consent in writing was taken from the landlord by the tenant.
12. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting takes place only when there is divesting of physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant keeps the control with him, it cannot be said that sub-tenant is in exclusive possession of premises and in such situation the case does not fall within Section 14 (1)(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
13. In the case titled as Vaishakhi Ram & Others Vs Sanjeev Kumar Bhatiani 2008, 14 SCC, it was held as under:-
"21. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the subtenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of subletting." Digitally signed by AJAY AJAY NAGAR NAGAR Date:
2021.01.12 14:29:19 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 10 / 32 It is well settled that initial burden to prove that sub-tenant is in exclusive possession of the suit property is on the owner. However, the onus to prove the exclusive possession of the subtenant is that of preponderance of probability only and he has to prove the same prima- facie only and if he succeeds then the burden to rebut the same lies on the tenant.
In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
In the case titled as Prem Parkash Vs. Santosh Kumar Jain & Sons and another, 2017, law suit (SC) 872, the relevant para is as under:-
"18. sub-tenancy or subletting comes into existence when the tenant gives a possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property.
In such a situation, it would be difficult for the landlord to Digitally prove, by direct evidence, the contract or agreement or signed by AJAY understanding between the tenant and the subtenant. It AJAY NAGAR would also be difficult for the landlord to prove, by direct NAGAR Date:
2021.01.12 evidence, that the person to whom the property had been 14:29:29 +0530 sublet, had paid monetary consideration to the tenant.New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 11 / 32
Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to have been paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the fact of the case."
In the case titled as Munshi Ram Vs Bhoj Ram through LRs in C.M. (M) No.1612/2010 and C.M. No.8004/2005, wherein it was observed as under:-
"It is well settled that to make out a case for subletting or parting with possession, it means giving a possession to persons other than those to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party."
In the case titled as Shalimar Tar Products Ltd. Vs H.C. Sharma, 1988, 1 (SCC) 70, the Hon'ble Apex Court noted that to constitute a subletting, there must be a parting with a legal possession and whether in a particular case, there was subletting or not, was a question of fact.
It is well settled that to establish the aforesaid ingredients, the landlord must establish that tenant had completely divested himself of the suit premises and parted with possession of the suit premises of the whole or part of the premises to the sub-tenants and this should be substantiated by the evidence.
In the case titled as Praveen Saini Vs Reetu Kapur & Anr.
246 (2018) DLT 709, the Hon'ble High Court of Delhi inter-alia
Digitally
observed as under:- signed by
AJAY
AJAY NAGAR
"On the aspect of admissions being binding, this Court NAGAR Date:
2021.01.12
would like to straightaway refer to the judgment of the 14:29:47
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Supreme Court in the case of Nagindas Ramdas Vs Dalpatram Ichharam alias Brijram & Others, 1973 (SLT Soft) 15 (1974) 1 SCC 242, because in this judgment the Supreme Court has laid down the ratio that evidentiary admissions are different than judicial admissions. Supreme Court has held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence etc and that judicial admissions can be a basis in themselves for deciding the claim. The relevant para 27 of the judgment in the case of Nagindas Ramdas (supra) read as under:-
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the court, on the basis of which the court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."
In the case titled as Sukhpal Singh & Anr. Vs Satbir Singh & Anr. 296 Capital Law Judgment 2012 (4), the Hon'ble Delhi High Court inter-alia observed as under:-
"4. It is important to note that the onus of proving subtenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988 SC1362",enunciated the principles whereby once the Digitally signed by landlord has proved that a particular portion of the demised AJAY premises has been given in exclusive possession to a AJAY NAGAR NAGAR Date:
stranger, then the onus shifts upon the tenant." 2021.01.12 14:29:55 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 13 / 32 In the case titled as Padam Chand Jain Vs Messrs Mahabir Pershad & Sons and another, S.A.O. No.464 of 1968, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another Vs Smt. Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the con--ditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170-I of the report)."
In case bearing C.M. (Main) No.172 of 2010 & C.M. Appl. Nos.2248-2249 of 2010 in case titled as M/s Udhey Bhan Ashok Kumar & Co. & Ors. vs. Neelam Kumari February 24, 2010; it was observed that :-
"4. Learned counsel for the petitioners has argued that mere change of the constitution of firm from partnership to proprietorship would not amount to sub-tenancy. I consider that this argument is not tenable. A partnership firm is not a legal entity. It is a conglomeration of partners. A tenancy in the name of partnership firm is a joint tenancy of the partners. If none of the partners in whose favour the tenancy was created is in possession of the shop and another person, who was later on inducted as a partner and then becomes sole proprietor of the firm is in possession of the tenanted premises then it is a clear cut case of sub-letting and parting with possession through the device of first inducting a stranger as a partner and then dissolving the partnership firm and handing over the premises to him. It makes no difference that he continues the business in the same name or that he was related to an erstwhile partner. I find no force in this petition. The petition is hereby dismissed."
14. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the testimonies of all the witnesses and also all the relevant documents filed on record and I have also heard the arguments advanced and I have also gone through carefully the case law relied upon. Digitally signed by AJAY AJAY NAGAR NAGAR Date:
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15. Lets discuss the 1st ingredient:-
(i). the tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. The sub tenant was in exclusive possession of property or part of the property.
16. Perusal of record shows that in the present case, petitioners have claimed that that the respondent became the tenant under the petitioners by operation of law when the petitioners purchased the property in dispute from its previous owner through a registered sale deed. The tenancy of the respondent was an oral one which was duly terminated by the petitioners through a registered Notice dt. 08.12.77 and the respondent is a statutory tenant. That the respondent has sub let, assigned or otherwise parted with the possession of the tenanted premises to Sh. Pyare Lal S/o Sh. Laxmi Chand, Sh. Narsingh Dass S/o Sh. Bichha Ram and Sh. Naresh Kumar after 9th day of June, 1952 without the written consent of the petitioners and their predecessors in interest and the said illegal persons are in occupation and possession of the tenanted premises.
17. On the other hand, the respondent has claimed that the respondent and others have been joint tenants since the year 1930. The other persons are Sh. Pyare Lal, Shri Narsingh Das and Late Shri Kali Ram, brother of the respondent. The tenancy was taken under the name and style of M/s Hari Chand Kali Ram from the previous owners/ landlord. Sh. Kali Ram died on 17.6.1972. Sh.Kali Ram left his legal heirs. Since the inception of the tenancy the respondent, his brother sh. Kali Ram, Sh. Pyare Lal and Shri AJAY NAGAR Narsingh Das are co-tenants in the tenanted premises. Legal Heirs Digitally signed by AJAY NAGAR Date: 2021.01.12 14:30:32 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 15 / 32 of Sh. Kali Ram as mentioned in Para no.1 are necessary parties as co-tenants.
18. Perusal of written statement shows that in the present case, the respondent has claimed in his written statement that respondent and Sh. Pyare Lal, Sh. Narsingh Das and Late Sh. Kali Ram, have been joint tenants since the year 1930 and tenancy was taken under the name and style of M/s Hari Chand Kali Ram from the previous owner/ landlord.
But perusal of evidence of respondent and also the evidence of witnesses examined by the respondent show that the respondent has diverted from the stand as taken in the written statement and they have claimed that they all formed the partnership.
In the case titled as Flora Elias Nahoum and Ors. vs. Idrish Ali Laskar decided on 25 January, 2018, the hon'ble court observed as under:-
"34. In our considered opinion, keeping in view the pleadings and the nature of the evidence adduced by the parties, the ground of sub- letting, as contemplated under Section 13(a) ibid, is made out. This we say for the following reasons.
35. In the first place, we find that the respondent (tenant), since inception, was taking inconsistent stand on the question of sub- letting.
36. To begin with, he denied having sub-let the suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in his examination-in-chief that Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.
37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as an "employee" of the respondent.
38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which Digitally signed by capacity, Joynal Mullick was sitting in the suit shop - whether as an AJAY AJAY NAGAR "employee" or a "business partner" or in any "other capacity". NAGAR Date:
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39. It seems that the respondent was not sure as to what stand he should take to meet the plea of sub-letting. He, therefore, went on changing his stand one after the other and could not prove either.
40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.
41. In other words, if Joynal Mullick was the respondent's employee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form.
That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.
42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.
43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent has sub-let the suit shop to Joynal Mullick, who was in its exclusive possession without their consent.
44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party's induction in the tenanted premises, no case of sub-letting is made out against such tenant.
45. In other words, the sin qua non for proving the case of the sub- letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlord's consent.
46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1, while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.
47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:
"4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or Digitally understanding between the tenant and the person to whom the signed by AJAY possession is so delivered. In this process, the landlord is kept out of AJAY NAGAR the scene. Rather, the scene is enacted behind the back of the NAGAR Date: 2021.01.12 14:30:50 landlord, concealing the overt acts and transferring possession +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 17 / 32 clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub- lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub- let."
48. In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick's presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.""
19. Perusal of record shows that no reliable, cogent and convincing documentary evidence has been produced by the respondent showing the existence of partnership amongst them. Even during the cross examination, it was admitted by the respondent and his witnesses that they are not having any document to prove that there existed any partnership amongst them.
20. It is pertinent to mention that the respondent has heavily relied upon the rent receipts issued by the previous owner and present owner claiming that such rent receipts were issued in the name of Digitally signed by AJAY AJAY NAGAR NAGAR Date:
2021.01.12 14:31:01 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 18 / 32 Sh. Hari chand and Sh. Kali ram and not in the name of sh. hari chand.
21. Perusal of written statement shows that stand of the respondent in written statement is that Sh. Hari chand and others are joint tenants in the tenanted premises. Perusal of W.S shows that nothing has been mentioned about the partnership amongst them.
But in the evidence the stand of the respondent is that they all i.e. Sh. Hari chand, Sh. Pyare Lal, Sh.Nar Singh dass, and Sh. Kali Ram formed the partnership business since beginning i.e. year 1930.
22. Perusal of record shows that the respondent has not produced any cogent and convincing documentary evidence to prove the fact that they all were joint tenants in the tenanted premises. During cross-examination, they all admitted that they are not having such documentary proof. No plausible explanation has been given by the respondent or his witnesses for not mentioning the name of Sh. Pyare Lal, Sh.Nar Singh Dass on the rent receipts issued by the previous owner despite the fact that the respondent has claimed that Sh. Pyare Lal Sh. Nar Singh Dass remained as co-tenants in the tenanted premises since year 1930.
23. Record shows that even single rent receipt has not been placed on record by the respondent showing the name of Sh. Pyare Lal, Sh.Nar Singh Dass. During the evidence, witnesses of the respondent have claimed that they were paying rent to the sh.Hari chand who used to pay rent to the previous owner. But perusal of record shows that no cogent and convincing documentary evidence Digitally signed AJAY by AJAY NAGAR Date: NAGAR 2021.01.12 14:31:11 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 19 / 32 has been produced by the respondent in respect of such payment to Sh. Hari chand.
24. The next contention of the respondent is that the previous owners/ landlords were fully aware of the presence of Sh. Pyare Lal and Sh. Narsingh Dass at the tenanted premises from the very commencement of the tenancy and having full knowledge, previous landlords and owners of the property went on increasing rent from Rs.10/- per month to Rs. 37.18p.
It is also contended by the respondent that the previous landlords / owners were legally not entitled to raise any objection to the alleged subletting to Sh.Pyare Lal and Sh. Narsingh Das by the principle of acquiescence, waiver, abandonment and estoppels.
It is also contended by the respondent that the petitioners themselves have been carrying on business in adjacent shop for the last more than 40 years and have been in the knowledge of the aforesaid Sh. Pyare Lal, sh. Nar Singh Das and sh. Kali Ram in occupation of the tenanted premises along with the respondent from the commencement of the tenancy in about the year 1930 and they have purchased the property with full knowledge thereof.
25. Perusal of written statement shows that on the one hand, the respondent has claimed the joint tenancy and further claimed during evidence that they were having partnership. On the other hand, the respondent has claimed in written statement that previous owner as well as present owner were aware of the fact of presence of sh. Pyare Lal and sh. Nar Singh Dass at the tenanted premises due to which the previous owner and present owners waived of their rights Digitally signed and acquiesced. AJAY by AJAY NAGAR Date: NAGAR 2021.01.12 14:31:17 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 20 / 32
26. As such, the respondent has taken the contradictory stands in the written statement itself. Moreover, section 14(1) (b) of DRC Act talks about the "consent in writing" and not mere "consent".
In the case titled as Duli Chand (Dead) By L.Rs vs Jagmender Dass decided on 8 December, 1989 (1989 SCR, Supl. (2) 465 1990 SCC (1) 169), the hon'ble Apex court observed as under:-
""In the aforesaid view it was held that it was necessary for the tenant to obtain the consent in writing to sub- letting the premises. The mere permission or acquiescence will not do. The consent shall also be to the specific sub- letting or parting with possession. This Court further observed that the requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not and that, therefore, mere permission or acquiescence will not do. While noting that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity, in the context of the statutory provision of the Delhi Rent Control Act, this Court further held that the requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of a right, dealing with the rights of the tenants or landlord. The words used in the section are "without obtaining the consent in writing of the landlord." If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise. The question of implied consent will not arise, if the consent is to be in writing."
In the case titled as Bhairon Sahai (D) Through LRS. Versus Bisamber Dayal (D) Through LRS. & Ors. Civil Appeal No.9198 of 2017(Arising out of SLP (C) No.24689 of 2011), it was held as under:-
"The combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is Digitally signed by retained as a pre-requisite even for the purposes of Sub-section AJAY AJAY NAGAR Date:
(4). What is of importance is, in either case whether a person has NAGAR 2021.01.12 14:31:23 been inducted genuinely as a partner and therefore allowed to +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 21 / 32 occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed."
7. On the other hand, Respondent No. 1 submits that entering into a partnership per se does not amount to sub-letting. It is also the case of the tenant that he did not part with possession of the premises as he was running the fair price shop right from 1964 though the licence was in the name of Respondent No.2. According to the tenant, there was no need to seek consent as there was no parting with possession of even a part of the premises. Mr.S.B. Upadhyay, learned Senior Counsel appearing for the Respondents relied upon the judgment of this Court in Parvinder Singh v. Renu Gautam and Others (2004) 4 SCC 794 wherein it was held that a tenant cannot necessarily be said to have sub-let the premises or parted with the possession thereof in favour of his partners merely because he had entered into a partnership. It was further held that a tenant may not be said to have parted with possession if he is actively associated with the partnership business and retains the user and control over the tenancy premises.
8. In the present case, it is clear from the evidence on record and the judgments of the courts below that there has been parting of possession by Respondent No.1 of a portion of the premises in favour of Respondent No.2 without taking the consent of the Appellant. The Rent Controller found that from 1964 onwards, there were two shops being run in the premises. One portion of the premises was being used for a fair price shop, the licence of which was in the name of Respondent No.2. The other portion was being used as a provision store which was being run by Respondent No.1. The averments in the Eviction Petition would disclose that the Appellant alleged parting of possession by Respondent No.1 in favour of Respondent No.2 between the years 1964 and 1976. The other allegation is that Respondent No.1 entered into a partnership with Respondent No.2 in 1977. No consent was taken from the Appellant for either parting with possession of a portion of the premises or for entering into a partnership.
9. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent No.2 was carrying on the business as Authorised Ration Distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for Digitally signed by eviction of the tenant without getting into the question of sub- AJAY AJAY NAGAR letting or assignment. NAGAR Date:
2021.01.12 14:31:29 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 22 / 32
10. No consent was sought before the Respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the Eviction Petition. Even the Appellate Tribunal did not adjudicate on the partnership between the Respondents. The High Court refers to the partnership deed dated 01.01.1977 only for the purpose of holding that Respondent No.2 was permitted to use a portion of the premises but was not given exclusive possession.
11. The question whether by entering into a partnership deed dated 01.01.1997, the first Respondent sublet the premises to the second Respondent does not arise for consideration in this case. Hence, the judgment in Parvinder Singh's case and other judgments cited by the learned Senior Counsel for the Respondents are not relevant.
12. In view of the above, the appeal is allowed on the ground of parting of possession by the tenant/Respondent No.1 in favour of Respondent No.2 without consent of the landlord. The Respondents are directed to vacate the premises within two months from today.""
In the case titled as Shalimar Tar Products Ltd vs H.C. Sharma & Ors decided on 12 November, 1987 (1988 AIR 145, 1988 SCR (1)1023), it was observed as under:-
"We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub-letting, the moment he realised the situation. In that view of the matter we are clearly of the opinion that in this case there was no consent in writing on the part of landlord to such sub-letting.
Dr. Shankar Ghosh tried to state that in view of the fact that the key of the premises was stated to be in the custody of the tenant, there was no sub-letting. It was the mere user, it was urged. It is difficult to accept this contention. The case of sub-letting was accepted as has been found by all the Courts in this case. Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2021.01.12
14:31:43 +0530
New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 23 / 32
Our attention was drawn to the certain observations on the question of directory/mandatory nature of the requirement that consent should be in writing.
Reliance was placed on the observations of Craies on Statute Law 7th Edition 261 wherein in the election case requirement that ballot paper had to be kept in a particular manner was considered to be directory and similarly it was submitted in this case the requirement of the consent to be in writing should be construed to be directory. It was urged that the conduct of the parties indicated that there was no breach of the covenant. We are unable to agree. Here the situation is clearly different. Here the requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not. Reliance was also placed on the observations of Maxwell in the Interpretation of Statutes 12th Edition at page 328 on the question of waiver:
Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity. We are, however, in this case unable to agree. Firstly, in this case there was no case of waiver. Waiver is a question of fact which has to be tested by facts and evidence. There was no conscious relinquishment of the advantage of any statute. No Court has gone into this fact. It does not seem to have been urged before the High Court also. Apart from this, in this requirement of the statute which is in the public interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord. In Chaplin v. Smith, [1926] 1 King's Bench Division 198, it was held that physical possession was not sufficient, there must be legal possession........"
........."That was the view of the Delhi High Court in Raja Ram Goyal v. Ashok Kumar and others, [1975] All India Rent Control Journal 534. In Kartar Singh v. Shri Vijay Kumar and Another, [1978] All India Rent Conrol Journal 264 the High Court of Punjab & Haryana has also expressed similar view. In the case of M/s Delhi Vanaspati Syndicate, Delhi v. M/s Bhagwan Dass Faqir Chand, (A.I.R. 1972 Delhi 17) Khanna, C.J. as he then was of the Delhi High Court observed at page 19 of the report:
"Section 16 of the Act of 1958 holds the key to the interpretation of provisions of Clause (b) of sub-section (1) of Section 14 of this Act as well as of Clause (b) of subsection (1) of S. 13 of the Act of 1952. It deals with restrictions on sub- letting. Sub-section (1) of section 16 makes sub- letting lawful though it was without the consent of the landlord provided that the sub-letting has taken place before 9th day of June, 1952 and the sub-tenant is in occupation of the premises at the time when the Act of 1958 came into force. Sub- section (2) of section 16 reiterates the provisions of Clause (b) of sub-section Digitally signed by (1) of Section 13 of the Act of 1952 and lays down that the sub- AJAY AJAY NAGAR letting after 9th day of June, 1952 without obtaining the consent in NAGAR Date:
2021.01.12 writing of the landlord shall not be deemed to the lawful. It does not 14:31:48 +0530 say that the requisite consent should be obtained before sub-letting New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 24 / 32 the premises and the consent obtained after sub-letting will not enure for the benefit of the tenant.
However, sub-section (3) of Section 16 prohibits subletting of the premises after commencement of Act of 1958 without the 'previous' consent in writing of the landlord. The use of word 'Previous' in this sub-section shows that where it was the intention of the legislature that the consent in writing should be obtained before sub-letting, it said so specifically. The absence of the word 'Previous' in subsection (2) shows that it was not the intention of the legisla- ture that the consent in writing could be obtained before sub- letting. Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in sub-letting to escape forfeiture of tenancy. Since the absence of consent in writing by a landlord for sub-letting gave rise to unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement. The purpose seemed to be that the consent of the landlord evidence by a writing would cut out litigation on this ground. After all a landlord could always agree to sub-letting either before or after sub-letting of the premises. For that reason no condition was laid down that such consent should be obtained before sub-letting the premises."
We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub-letting, the moment he realized the situation."
In the case titled as Pooran Chand vs Motilal and Ors. Decided on 11 December, 1962 AIR 1964 SC 461, 1963 Supp 2 SCR 906, it was observed as under:-
"10. Even so, it is contended that the appellant had not sublet the premises within the meaning of s. 13(1)(b)(i) of the Act. It is said that the sub-section applies only to a case of sub-tenancy created for the first time after the lease was taken and does not cover a case where there was already a sub-tenant and a new subtenant was inducted when the previous sub-tenant vacated it. This conclusion is sought to be drawn from the words "sublet, assigned, or otherwise parted with the possession" and it is argued if possession had already been parted with by way of Digitally sub-lease and what was done was only to substitute another in signed by AJAY the place of the earlier sub-tenant, this sub-clause is not AJAY NAGAR attracted. There are no merits in this contention. Section 13(1)(b) NAGAR Date:
2021.01.12
(i) clearly says that if a tenant, without obtaining the consent of 14:31:54 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 25 / 32 the landlord in writing has, after the commencement of this Act, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises, he is liable to be evicted.
Here, admittedly after the lease deed of 1952 the appellant has sublet some of the rooms of the building to others without obtaining the written consent of the landlord. The fact that there were sub-tenants in the said portions could not conceivably be of any help to the appellant, because the new sub-tenants were not holding under the earlier sub-tenants, but were inducted by the appellant, after the earlier sub-tenancies were terminated. The appellant, having sub-let part of the premises without the consent of the landlord in writing, cannot invoke the protection given to him under s. 13 of the Act.""
27. As such, in view of settled law, this contention of the respondent as to acquiescence, waiver and estoppels is without any substance.
28. One of the contentions of the respondent is that the petition has not been filed within limitation as provided under Indian limitation Act.
In Subhash Chand Goel & Ors Versus Hans Raj Gupta & CO Pvt. LTD Pronounced on: 2nd September, 2019 CM(M) 340/2012 with CM APPL. 5107/2012 & 5519/2018, the hon'ble high court observed as under :-
"19. Mr.Aggarwal cited the Kerala High Court decision in Sadanandan (supra) to support his submission that a case of sub- letting is one of a recurring cause of action. The relevant paragraph of the judgment reads as follows:
"7. We are also of the view that where a subletting is involved, the landlord gets a clause of action, which can only be described as a recurring clause of action. Every moment the objectionable sub- tenancy continues, the landlord gets, a right to apply for eviction under the Act after complying with the requirement of the proviso to Sec. 114)(i) of the Act. There is nothing in the Act which provides for the extinguishment of the right, once a notice under Digitally signed by the proviso is issued, but it is not followed up by a petition for AJAY AJAY NAGAR eviction. The objectionable subletting does not become an NAGAR Date:
2021.01.12 authorised subletting by that process. The right to apply for 14:32:00 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 26 / 32 eviction will continue so long as the objectionable subletting subsists...."
20. The Gujarat High Court has come to a similar conclusion in Amrutlal Jagjivandas Shah and Anr. Vs. Ramniklal Jagjivandas Shah (2005) 2 RCR 388, in the context of Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Paragraph 10 of the judgment reads as follows:
"10. Even otherwise, it is to be seen that in case of raising pakka construction, the moment construction is completed, a cause of action generates or accrues in favour of the landlord. In case of a sub-tenancy, which is continuing since after its creation, would give continuous cause of action to the landlord. A tenant cannot be allowed to say that though sub-tenancy was created, but after 12 years, it would ripen into a valid sub-tenancy. The judgment in the matter of Shakuntala (supra) was on different facts and cannot be applied to the facts of the present case."
21. The reasons given by the Kerala and Gujarat High Courts in the aforesaid judgments are applicable to Section 14(1)(b) of the Act as well. In the present case, the factual narration noted by the Trial Court also shows that the fact of the amalgamation was not made known to the petitioners. In the Kerala High Court decision, the fact of sub- letting was in fact known to the landlord who had also issued a notice of eviction. Even in those circumstances, a belated Eviction Petition was held not to be barred by limitation. The defence of limitation raised by the respondent is therefore rejected."
29. AS such this contention of the respondent is without any substance.
30. One of the arguments of the respondent is that the consent in writing was not required before the year 1952 as per DRC Act.
31. Perusal of the written statement shows that in the written statement, no such plea was raised by the respondent and it is beyond pleading. Digitally signed by AJAY AJAY NAGAR NAGAR Date:
2021.01.12 14:32:06 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 27 / 32 In Karam Singh Sobti & Anr vs Pratap Chand & Anr decided on 29 August, 1963 (1965 AIR 83, 1964 SCR (4) 673), it was observed as under:-
""The Control Act of 1958 made a radical change in respect of many matters. So far as eviction of tenants is concerned, a matter with which we are concerned in the present appeal, jurisdiction was conferred on the Controller to be appointed under s. 35 to order recovery of possession of the premises on one or more of the grounds mentioned in the proviso to s. 14 of the Control Act of 1958. S. 16 of the Control Act of 1958 put certain restrictions on sub-
letting and one of these restrictions was that no premises which had been sub-let either in whole or in part on or after June 9, 1952 without obtaining the consent in writing of the landlord should be deemed to have been lawfully sub- let ; but where at any time before June 9, 1952 a tenant had sub-let the whole or any part of the premises and the sub- tenant was at the commencement of the Act in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises would be deemed to have been lawfully sublet. S. 17 required the sub-tenant to give notice to the landlord and s. 18 provided that in certain circumstances the sub- tenant was to be treated as the tenant. With the details of these provisions we are not concerned in the present case except to point out that the Control Act of 1958 made radical changes in the matter of eviction of tenants on the ground of sub-letting. In the matter of sub-letting the relevant date was taken as June 9, 1952 the date on which the Control Act of 1952 came into force, and a distinction was made between sub-letting before that date and sub-letting after that date. A subletting before June 9, 1952 was treated as lawful sub-letting if the sub-tenant was in occupation of the premises at the commencement of the Control Act of 1958; but a sub-letting after June 9, 1952 without the previous consent in writing of the landlord was treated as unlawful for the purposes of the Control Act of 1958.............""
"............The question then arises whether the High Court was right in its view that there was no evidence in the case to support the finding of acquiescence. The evidence only showed that the respondent knew that the appellant was in occupation of the demised premises. I think that the High Court pointed out, rightly that the fact that a landlord had knowledge that a person other than a tenant was in possession did not by itself always lead to an inference that the landlord had knowledge that the person in Digitally signed by possession was a sub-tenant. The facts of the present case AJAY made such an inference more difficult. They were as follows: The AJAY NAGAR NAGAR Date:
appellant had been in possession of the room from sometime in 2021.01.12 14:32:13 1949 till November 1950 along with the Association. All this time +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 28 / 32 he was publishing a magazine called the All India Motorist which was the official organ of the Association. This he was doing under an agreement with the Association which provided that "office accommodation for the staff of the A.I. Motorist to be provided by the Association in 6, Pratap Buildings". He was at one time the General Secretary of the Association and constantly on the premises doing also his own business there,, In November 1950 the Association took another premises as the demised room was found too small for its expanding activities. From November 1950, the appellant remained in sole possession of the premises carrying on his businesses there as previously, including the business of publishing the aforesaid official organ of. the Association. In may 1954, the agreement between the Association and the appellant for the printing and publication of the magazine was brought to an end and the Association started its own magazine. Since then the appellant alone has been using the room for his own purposes.
I do not think that these facts establish that the res- pondent had any reason to think that from November 1950, when the sub- tenancy commenced, the appellant had been in possession as a sub-tenant for he had been using the room for the work of tile Association. Only since May 1954, the appellant occupied the room solely for his own purposes. The respondent might well, therefore, have thought that the occupation of the appellant prior to 1954 was really for the Association. Since 1954 however the respondent had not accepted any rent. I am unable in this state of the evidence to hold that the view that the High Court took was erroneous. I do not think that the case of Mukesh Chand v. lamboo Parshad(1) to which learned counsel for the appellant referred assists him on this point. There it was held that knowledge of possession was on the facts of the case evidence of knowledge of possession under a licence. It is not necessary to pronounce on the correctness of that decision for we are concerned with a different question, namely whether knowledge of possession is evidence of knowledge of possession under a contract of sub-tenancy. A point was raised at the bar that even if acquiescence had been proved that would not have affected the landlord's statutory right to recover possession on proof of a sub- letting without his consent. I do not think it necessary to deal with that question in the present case as no acquiescence was proved."
32. As such, this contention of the respondent is without any substance. Moreover, in the written statement, the stand of the respondent is that there is no sub-tenancy in the present case and respondent alongwith other are joint tenants in the tenanted Digitally signed premises. AJAY by AJAY NAGAR NAGAR Date:
2021.01.12 14:32:20 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 29 / 32
33. One of the arguments of the respondent is that Sh. Kali Ram who was running business used to put wooden takhat in front of shop and paid charges for the same to the MCD which issued the receipt thereof. Sh. Hari Chand was running business and Sh. Pyare Lal was running his business even much prior to purchase of this property by the petitioners and he was receiving the house tax notice from MCD in respect of his house at the address of the premises in question. That petition of the petitioners is false to the knowledge of the petitioners as even inspection / survey was carried out by the MCD in 1953 and the names of all the above named tenants who are in occupation in the tenanted premises are shown in the municipal record. And such proceedings were never challenged by the petitioners.
34. In my considered view, non-challenging of such proceedings by erstwhile owner or the petitioners is not fatal as discussed earlier exhaustively what matters is consent in writing and acquiescence is not sufficient for the purposes of ruling out the effect of section 14(1)
(b) of DRC Act.
35. It is well settled that the petitioner/landlord has to prove prima- facie case that somebody else in the possession of the tenanted premises and once he has been able to prove it then onus shifts to the respondent/tenant to explain the reasons for presence of other person in the tenanted premises. It is also well settled that not only the physical possession but also legal possession should be parted with by the tenant/respondent to prove the sub-letting U/Sec. 14(1)
(b) of D.R.C. Act. Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2021.01.12 14:32:27 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 30 / 32
36. I have gone through the case law relied upon by Ld. Counsels for the parties. The case law relied upon by the respondent do not assist respondent in view of exhaustive discussion as earlier, peculiar facts of the case, settled law and material on record.
37. Perusal of material on record and the admissions made by the respondent clearly show that somebody other than the respondent is in physical and exclusive possession of the tenanted premises. And even the legal possession is also not with the respondent.
38. As such, documents, testimonies, material on record, and discussion manifestly show that first ingredient of Sec. 14(1)(b) of D.R.C. Act is satisfied.
(ii). No consent in writing was taken from the landlord by the tenant.
39. Perusal of record shows that in the present petition, the respondent has not claimed in his written statement that the consent in writing was taken from the petitioners.
40. As such, this is also proved that the consent in writing was not taken by the respondent from the petitioners or erstwhile owners. Hence, this ingredient is also satisfied.
CONCLUSION:-
41. In view of the discussions, the petitioners have been able to Digitally signed by prove all the ingredients of Sec. 14(1)(b) of D.R.C. Act against the AJAY AJAY NAGAR NAGAR Date:
2021.01.12 14:32:33 +0530 New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 31 / 32 respondent. As such, an eviction order is passed in favour of petitioners and against the respondent in respect of tenanted premises i.e. Shop no. 1630 to 1632, Chuna Mandi, Pahar Ganj, New Delhi as shown red in the site plan Ex. AW1/3.
42. This file be consigned to Record Room after due compliance.
Digitally
signed by
AJAY
AJAY NAGAR
NAGAR Date:
2021.01.12
14:32:40
+0530
Announced in open court (Ajay Nagar)
on 11th January, 2021 Additional Rent Controller-2
Central District, THC, Delhi.
(This judgment contains 32 pages)
New No. 78184/16 Jitender Nath Sharma & Another Vs. Hari Chand Page 32 / 32